Only Florida's governors can say how they pick execution order

Only Florida's governors can say how they pick execution order

Sarah Lundy Sentinel Staff Writer
8:37 PM EDT, May 19, 2009

Last month, Florida Gov. Charlie Crist decided it was time for John Marek and David Johnston to die.

Crist picked out Marek and Johnston from nearly two dozen death-row inmates whose appeals are exhausted. Exactly how he came to pick those two prisoners -- and why -- is a subject only the governor can answer.

He's not talking. And neither are former governors who have made similar decisions since Florida reinstated its death penalty in 1976.

"I don't know how they decide," said Marek's lawyer, Marty McClain, a veteran death-row attorney who has defended hundreds of inmates. "Over the years I have wanted to know the answer to that question."

He's not alone. Johnston's attorney, Todd Doss, has defended at least two dozen death-row inmates, and he asks this question in his latest effort to stop the inmate's execution.

"Mercy was extended to these other inmates and they were allowed to continue to live," he wrote in a 30-page motion filed in Orange circuit court. "The process can only be described as a lottery."

Florida gives the decision to initiate the state's ultimate punishment to the governor, who sets his own criteria in choosing the next to enter the death chamber. Other states, such as Texas, Georgia, Mississippi and California, place the responsibility on their court systems.

There are 392 prisoners on death row. Since 1979, Florida has executed 67 inmates, including two women, for their crimes. And over the years the selection of these condemned has remained a mystery.

"It's the epitome of how arbitrary it is," said Elisabeth Semel, director of the Death Penalty Clinic at the University of California- Berkeley.

Chiles wanted to know case specifics

Former Gov. Lawton Chiles focused on where the cases stood on appeals, said Tallahassee attorney Tom Crapps, who monitored death penalty cases for Chiles from 1996-98.

If a case reached the point that all state and federal appeals were exhausted, Crapps would prepare it for the governor. He'd speak with the prisoner's attorney, asking about any other details the governor should know.

"I would read all the opinions written by the court," Crapps said.

Crapps would discuss the case with other attorneys in the governor's office. Then he'd meet with Chiles.

"It wasn't an easy process for anyone," he said.

"He would grill me about the case," Crapps recalled. "He wanted to know about the facts, the witnesses and evidence and issues raised on appeal."

During Chiles' eight-year- term, 18 prisoners -- including one woman -- were executed.

Jeb Bush leaned toward volunteersAs governor, Jeb Bush signed more than two dozen death warrants. Of those, 21 people were executed.

Defense attorneys say Bush seemed to lean toward volunteers, inmates who stopped appealing their cases. Killer Paul Hill, who was convicted to killing an abortion doctor and a clinic escort in Pensacola in 1994, volunteered for his September 2003 execution. Two years later, Glen Ocha raised his hand to be executed for killing a Kissimmee woman in 1999.

University of Florida law professor Bob Dekle remembered getting a call from Bush's office when John Blackwelder -- the man Dekle prosecuted for tying up and killing another prisoner -- was up for execution after volunteering in May 2004.

Another prisoner confessed to the same crime, so Bush wanted to make sure Blackwelder was really the killer. A DNA test was done and confirmed Blackwelder's guilt before execution day.

Neither former Bush nor attorneys who worked for him responded to e-mails requesting interviews.

Martinez bogged down court system

Nobody signed more death warrants in Florida than former Gov. Bob Martinez. In four years (1987-91), Martinez set a record with 139 death warrants. Of those, only nine executions were carried out.

Appellate courts delayed case after case in part because Martinez often signed death warrants on prisoners whose attorneys had yet to file appeals in federal court. His approach overwhelmed the court system, overburdening court-appointed defense attorneys who were forced to file a slew of motions to stop executions on cases that had appeals waiting, defense attorneys said.

"He wanted to keep pressure on defense attorneys," McClain said. "It was a really horrible experience."

Martinez said he doesn't comment about how he made his decisions."It's a very hard thing to do . . . I won't make any comment on it."

Crist unable to discuss his process

In two-plus years on the job, Crist has signed five death warrants. Three have been carried out.

Mark Schwab, who kidnapped, raped and murdered 11-year-old Junny Rios-Martinez of Brevard County in 1991, was executed July 1.

Richard Henyard, who fatally shot sisters Jamilya Lewis, 7, and Jasmine Lewis, 3, after raping their mother in 1993 in Lake County, followed on Sept. 23.

And Wayne Tomkins, who murdered his girlfriend's daughter, 15-year Lisa DeCarr, of Tampa in 1983, was the third on Feb. 11.

According to spokesman Sterling Ivey, Crist was unavailable to discuss his execution selection process. Ivey, however, said Crist considers:

 How heinous, atrocious and cruel the crime was.

 Who the victim was, whether a child, an elderly person or someone who had a relationship with the prisoner.

 Other crimes committed at the time of the murder.

 Death row warrants history.

 And if appeals are exhausted or there are legal issues being raised.

Such guidelines don't offer much guidance, defense attorneys say. These details fit many death row cases, which are typically the state's worst of the worst murders.

Whatever his criteria, Crist picked out Johnston, a transient who murdered an Orlando woman in 1983, and Marek, who raped, strangled and burned a woman before leaving her body at a Dania Beach lifeguard station in 1984, as the next two people for Florida to execute..

Marek was scheduled to die May 13, but the Florida Supreme Court issued a stay, delaying the execution so McClain can present potential new evidence before the panel today. Johnston is set to die May 27 but also has a chance to sway the Florida Supreme Court today.

24 inmates have exhausted their appeals

Florida's Commission on Capital Cases, which assists attorneys who handle most of the death-row appeals, keeps an ongoing list of men who finished their appeals.

It's the list executive director Roger Maas refers to as "death-ready" cases.

Right now, 24 inmates are on the list, including Johnston. Marek still had an appeal pending when Crist signed his death warrant.

Crist isn't showing much of a pattern, Maas and other defense attorneys said.

"It's still early in his term yet," Doss said. "We had eight years of Jeb Bush to get his methodology."

Meanwhile, a handful of defense attorneys around Florida wonder if one of their clients is next on the governor's list. That is, if there is an actual list.

No one wants to ask. Defense attorney say they fear inquiring may bring attention to their case.

"It just depends on the governor and what he thinks is most pressing," said Dekle.

Some may have theories as to who will be next -- but Crist is the only one who can say.

Sarah Lundy can be reached at slundy@orlandosentinel.com or 407-420-6218.